Margaret Ann Gleason v. Michael J. Astrue, No. 5:2012cv00649 - Document 16 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: (See document for details.) For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (rla)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 EASTERN DIVISION 8 9 MARGARET ANN GLEASON, 10 Plaintiff, 11 12 13 ) ) ) ) ) ) ) ) ) ) ) ) ) v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 Case No. EDCV 12-649-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Margaret Ann Gleason seeks judicial review of the 18 Commissioner s final decision denying her application for Supplemental 19 Security Income ( SSI ) benefits under Title XVI of the Social Security 20 Act. 42 U.S.C. § 1381 et seq. For the reasons set forth below, the 21 decision of the Commissioner is affirmed. 22 23 I. Background 24 Plaintiff was born on July 14, 1971, and has a high school 25 education. (Administrative Record ( AR ) at 20, 61.) She filed her 26 application 27 beginning July 1, 2006, due to chronic pulmonary disease and mental 28 disorders. (AR at 9, 61.) for SSI benefits on May 7, 2009, alleging disability 1 Plaintiff s application was denied initially on September 10, 2009, 2 and upon 3 administrative 4 Administrative Law Judge ( ALJ ) Daniel G. Heely. Plaintiff, represented 5 by counsel, testified, as did a Vocational Expert ( VE ). (AR at 9.) 6 On January 18, 2011, the ALJ issued an unfavorable decision. (AR at The reconsideration hearing ALJ on was determined January held 2010. December 8, 9.) 2010, before impairments of chronic obstructive pulmonary disease and depression. 9 Nevertheless, he found that Plaintiff has the residual functional 10 capacity ( RFC ) to perform a wide range of medium work activity, except 11 that she is limited to work involving simple repetitive tasks, she can 12 never climb ladders, ropes and scaffolds, she cannot work with hazards 13 such as moving machinery and unprotected heights, and cannot be exposed 14 to concentrated fumes, dust and gases. (AR at 13.) The ALJ found that 15 considering Plaintiff s age, education, work experience, and RFC, there 16 are jobs that exist in significant numbers in the national economy that 17 she can perform. (AR at 20.) The Appeals Council denied review on March 18 14, 2012. (AR at 1.) 19 Plaintiff for judicial from An 8 action suffers at 9-21.) this Plaintiff (AR 7 commenced that on 6, the severe review, and on 20 September 14, 2012, the parties filed a Joint Stipulation ( Joint 21 Stip. ) of disputed facts and issues. Plaintiff contends that the ALJ 22 erred in two respects: (1) he improperly rejected the opinion of 23 Plaintiff s treating psychiatrist, Dr. Wali; (2) his findings that 24 Plaintiff could perform the jobs of kitchen helper and packer were 25 inconsistent with the requirements of the jobs as determined by the 26 Dictionary 27 Plaintiff 28 alternative, remand for further administrative proceedings. (Joint Stip. of Occupational seeks remand for Titles the ( DOT ). payment 2 of (Joint Stip. benefits or, at 2-3.) in the 1 at 17.) Defendant requests that the ALJ s decision be affirmed or, if 2 the Court finds that the ALJ committed reversible error, that the Court 3 remand for further administrative proceedings. (Joint Stip. at 17-18.) 4 5 II. Standard of Review 6 Under 7 Commissioner s 8 Commissioner or ALJ must be upheld unless the ALJ s findings are based 9 on legal error or are not supported by substantial evidence in the 42 U.S.C. § decision 405(g), to a deny district benefits. court The may review decision of the the 10 record as a whole. 11 1990); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 12 evidence means such evidence as a reasonable person might accept as 13 adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 14 401 (1971); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It 15 is more than a scintilla, but less than a preponderance. Robbins v. Soc. 16 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). To determine whether 17 substantial evidence supports a finding, the reviewing court must 18 review the administrative record as a whole, weighing both the evidence 19 that supports and the evidence that detracts from the Commissioner s 20 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 21 the evidence can support either affirming or reversing the ALJ s 22 conclusion, the reviewing court may not substitute its judgment for 23 that of the ALJ. Robbins, 466 F.3d at 882. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 24 25 III. Discussion 26 A. The ALJ Accorded Appropriate Weight to the Opinion of Dr. Wali 27 Plaintiff contends that the ALJ erred in rejecting the opinion of 28 Dr. Wali, M.D., from Upland Community Counseling, where Plaintiff 3 1 received treatment for approximately two years.1 (Joint Stip. at 2-8.) 2 On October 28, 2010, Dr. Wali completed an assessment in which he 3 indicated 4 competitive standards as to: performing at a consistent pace, accepting 5 instructions and criticisms, getting along with co-workers, setting 6 realistic goals, acting independently, dealing with stress of semi- 7 skilled 8 transportation. (AR at 538-39.) Additionally, he said that Plaintiff was 9 seriously limited, but not precluded in her ability to: remember by checking work, and boxes traveling in instructions, that Plaintiff unfamiliar maintain was places, attention, unable and using maintain to meet public 10 procedures regular 11 attendance, sustain a routine, work with others, ask questions, respond 12 to changes, deal with normal stress, be aware of hazards, interact with 13 the public, maintain socially appropriate behavior, and adhere to 14 standards of neatness and cleanliness. (AR at 538-39.) In a very brief 15 hand-written explanation, Dr. Wali noted that these limitations were due 16 to Plaintiff s mood swings, anger outbursts, insomnia, medication side 17 effects, and poor social skills. (AR at 539.) 18 The Commissioner is directed to weigh medical opinions based in 19 part on their source, specifically, whether proffered by treating, 20 examining, or non-examining professionals. Lester v. Chater, 81 F.3d 21 821, 830 31 (9th Cir. 1995). An ALJ should generally accord greater 22 probative weight to a treating physician s opinion than to opinions from 23 24 25 26 27 28 1 Plaintiff asserts, and Defendant does not contest, that Dr. Wali is Plaintiff s treating psychiatrist. However, the Court s review of the record does not reveal any evidence that Dr. Wali ever directly treated or even examined Plaintiff. Instead, the treatment notes from Upland Community Counseling reflect that she was seen most often by Dr. Dau Nguyen, M.D., as well as by other physicians, none of whom were Dr. Wali. (AR at 338-364, 403-11, 455-65.) Regardless, there is substantial evidence to support the ALJ s decision to reject Dr. Wali s opinion, even assuming he is a treating physician. 4 1 non-treating sources. See 20 C.F.R. § 404.1527(d)(2). However, the ALJ 2 need not accept the opinion of any physician, including a treating 3 physician, if that opinion is brief, conclusory, and inadequately 4 supported by clinical findings. Thomas v. Barnhart, 278 F.3d 947, 957 5 (9th Cir. 2002). In determining the appropriate weight to give a 6 treating source opinion, the adjudicator considers the duration, nature, 7 and extent of the treatment relationship. Orn v. Astrue, 495 F.3d 625, 8 631 (9th Cir. 2007); 20 C.F.R. § 404.1527(c)(2)(i)-(ii)). Additional 9 factors to be considered in evaluating any medical opinion include, 10 inter alia, the amount of relevant evidence that supports the opinion 11 and the quality of the explanation provided and the consistency of the 12 medical opinion with the record as a whole. 13 C.F.R. § 404.1527(c)(3)-(6)). If the ALJ decides to reject a treating 14 physician s opinion in favor of a non-treating physician s contradictory 15 opinion, the ALJ must give specific and legitimate reasons for doing 16 so, which are supported by substantial evidence in the record. Orn, 495 17 F.3d at 632-33; Lester, 81 F.3d at 830. Orn, 495 F.3d at 631; 20 18 Here, the ALJ explained that his decision to give little weight 19 to Dr Wali s assessment was based on the fact that Dr. Wali gave his 20 opinion on a check-the-box form without providing specific facts to 21 support 22 inconsistent with other evidence in the record. (AR at 20.) These were 23 legitimate reasons for refusing to give Dr. Wali s opinion greater 24 weight, which were supported by substantial evidence in the record. 25 The the limitations inconsistent he identified, evidence included and the that his opinions opinion of was examining 26 physicians Shint P. Parikh, Ph.D., a board eligible psychiatrist, and 27 Reynaldo Abejuela, M.D. Plaintiff was evaluated by Dr. Parikh on April 28 1, 2007, and by Dr. Abejuela on August 18, 2009. Both doctors observed 5 1 that Plaintiff was neat and clean, cooperative, and had normal eye 2 contact and gestures. (AR at 205, 388.) They also noted that she is able 3 to take care of her personal hygiene and finances, and engages in normal 4 daily activities such as household chores and watching TV. (AR at 208, 5 388.) Both found that her reasoning and comprehension are intact. (AR at 6 209-11, 388.) Dr. Parikh noted that Plaintiff gets along with family 7 members, has close friends, and lives with her boyfriend. (AR at 208.) 8 In contrast, Dr. Abejuela noted that Plaintiff reported her relations 9 with family, friends, and neighbors as poor. Both stated that 10 Plaintiff 11 depressed. Dr. Parikh concluded that Plaintiff s ability to function in 12 a work setting was not impaired, while Dr. Abejuela concluded that her 13 occupational and social functioning impairment is none to mild . (AR at 14 212, 391.) 15 A reported medical hearing source voices, opinion on and an found that applicant's her RFC mood may was itself 16 constitute substantial evidence if it rests on independent examination. 17 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Here, Dr. 18 Parikh and Dr. Abejuela each independently examined Plaintiff. Though 19 these examinations took place approximate two years apart, both doctors 20 made similar observations regarding her appearance and reached similar 21 conclusions 22 circumstances, it was not error for the ALJ to give these opinions 23 significant weight. regarding her ability to function. Under these 24 Additionally, many of the extreme limitations found by Dr. Wali 25 were contradicted by the treating records from Upland Community Center. 26 Though 27 incapable of normal social interactions, an evaluation completed on 28 September 16, 2009, by an Upland physician states that Plaintiff s Dr. Wali s found that Plaintiff 6 was seriously limited or 1 ability to interact with the public, coworkers, and supervisors was 2 good. (AR at 407.) An earlier evaluation, completed on September 13, 3 2007, also states that her behavior was within normal limits. (AR at 4 338-339.) Likewise, though Dr. Wali found she was severely limited in 5 her ability to adhere to standards of neatness and cleanliness, the 2007 6 evaluation states that her appearance and hygiene were also within 7 normal 8 contradicted by the 2007 evaluation s finding that Plaintiff s thought 9 process and thought content were within normal limits, and the 2009 10 evaluation s conclusions that Plaintiff s ability to adapt to workplace 11 changes and be aware of hazards was good. limits. (AR at 339.) Dr. Wali s conclusions are further 12 While there are frequent notations throughout the Upland records 13 that Plaintiff is bipolar, experiences moods swings, and reports hearing 14 voices, it is not clear that these conditions support the extreme 15 limitations assessed by Dr. Wali. (AR at 331-39.) Nor does Dr. Wali 16 specifically 17 identified in his opinion, which was provided on a check-the-box form 18 with very little commentary added. (AR at 538-39.) It was appropriate 19 for the ALJ to reject this opinion due in part to its format and Dr. 20 Wali s failure to provide an adequate supporting explanation for his 21 conclusions. See Molina v. Astrue, 674 F.3d 1104, 111-12 (9th Cir. 22 2012). ( We have held that the ALJ may permissibly reject check-off 23 reports that do not contain any explanation of the bases of their 24 conclusions. ) (internal citations and quotation marks omitted). explain how these conditions cause the limitations 25 Furthermore, it appears that the Upland treatment records provided 26 the only basis for Dr. Wali s assessment, as there is no evidence that 27 Dr. Wali personally treated or examined Plaintiff. In this context, the 28 inconsistencies in the records and their lack of clear support for Dr. 7 1 Wali s conclusions are of particular import. Accordingly, the ALJ s 2 decision to reject Dr. Wali s opinion as inconsistent with other 3 evidence in the record was supported by substantial evidence. 4 B. The ALJ Properly Found that there Are Jobs that Plaintiff Can 5 Perform in the National Economy 6 The ALJ determined that Plaintiff could perform a wide range of 7 medium work, but that she cannot work with hazards such as moving 8 machinery and unprotected heights. (AR at 13.) At the administrative 9 hearing, the ALJ had asked the VE a hypothetical regarding the jobs that 10 could 11 limitations, including that the person could not work around hazards, 12 like moving dangerous machinery . . . (AR at 58.) In response, the VE 13 testified that Plaintiff could perform the jobs of kitchen helper (DOT 14 318.687-010) and Packer (DOT 920.587-018). The ALJ relied on the VE s 15 testimony to find that Plaintiff was able to perform jobs which exist in 16 significant numbers in the economy. (AR at 20-21). be performed by someone with Plaintiff s background and 17 Plaintiff asserts that the ALJ s determination is not supported by 18 substantial evidence because both jobs identified by the VE require 19 Plaintiff to work around machinery, despite the ALJ s RFC determination 20 that Plaintiff cannot work with hazards such as moving machinery. 21 (Joint Stip. at 11-15.) Citing to the DOT description of kitchen helper, 22 Plaintiff points out that the job would involve using machines to wash 23 garbage cans, wash dishes, and polish silver. (Join Stip. at 13). With 24 respect to the job of packager, Plaintiff notes it would require her to 25 use a conveyer belt. (AR at 14.) 26 When an ALJ determines that a job may be performed in a manner 27 that contradicts the [DOT], the 28 evidence to support the deviation. Pinto v. Massanari, 249 F.3d 840, 8 record must contain persuasive 1 845-46 (9th Cir. 2001) (quoting Johnson v. Shalala, 60 F.3d 1428, 1435 2 (9th Cir. 1995)). Here, however, Plaintiff has not shown that the VE s 3 testimony and the ALJ s finding contradict the DOT. While Plaintiff is 4 correct that the DOT descriptions suggest that the jobs of kitchen 5 helper and packer require work with machinery to some degree, the 6 logical reading of the ALJ s RFC determination is that Plaintiff is 7 unable to work with hazardous machinery. The ALJ s opinion contains 8 nothing to suggest that he meant to find that Plaintiff was precluded 9 from working around any and all machinery, and his hypothetical to the 10 VE indicated that he was concerned with dangerous machinery. (AR at 58); 11 see also Black s Law Dictionary (9th ed. 2009) (defining hazard as 12 danger or peril ). Plaintiff has made no showing that the types of 13 machines associated with the jobs of kitchen helper and packer are 14 hazardous. To the contrary, the DOT specifically states that exposure to 15 moving mechanical parts, electric shock, high exposed places, radiation, 16 explosives, or toxic caustic chemicals is not present in both jobs. 17 DOT 318.687-010; DOT 920.587-018. 18 Furthermore, the DOT description for both kitchen helper and packer 19 state that workers perform any combination of the tasks listed, but do 20 not state that a worker is required to perform all of them. DOT 318.687- 21 010; DOT 920.587-018. Both job descriptions include multiple tasks that 22 do not involve the use of a machine. 23 Accordingly, there was no inconsistency between the VE's testimony 24 and the DOT, and the ALJ s determination that Plaintiff could perform 25 the jobs identified by the VE was supported by substantial evidence. 26 // 27 // 28 // 9 1 2 3 IV. Conclusion For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 4 5 DATED: September 21, 2012 6 7 8 ______________________________ Marc L. Goldman United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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